Policy background
- The terrorism threat level in the UK remains "substantial" – meaning an attack is likely – and there have been 29 terrorist attacks disrupted since 2017. The terror attacks at Fishmongers’ Hall on 29 November 2019 and in Streatham on 2 February 2020 were clear demonstrations of the risk the UK continues to face from terrorism. Each attack was committed by a known terrorism offender who had been released automatically at the halfway point of their sentence without input from the Parole Board. Following the attack in November 2019, the Government announced its intention to introduce a new approach to the sentencing and management of terrorist offenders. This included longer sentences and ending early release for dangerous terrorist offenders; overhauling prisons and probation, including tougher monitoring conditions and the doubling of counter-terrorism probation officers; increasing Counter-Terrorism Police funding; and reviewing support for victims of terrorism, including an immediate £500,000 to the Victims of Terrorism Unit. It also launched an independent review of the way different agencies, including police, probation service and the security services, investigate, monitor and manage terrorist offenders – called Multi-Agency Public Protection Arrangements (MAPPA).
- The Government had already announced its intention to bring forward legislation to change the sentencing and release of terrorist offenders. The Government introduced emergency legislation, the Terrorist Offenders (Restriction of Early Release) Act 2020 ("TORER Act"), to ensure that terrorist offenders serving or sentenced to a determinate sentence could not be released before the end of their custodial term without agreement of the Parole Board. Due to the nature of the threat posed, these measures were applied to both serving prisoners and prospectively. The provisions of this Act applied in England and Wales and Scotland.
- The TORER Act applied to Great Britain but did not extend to Northern Ireland (NI) at that time. NI determinate sentencing provisions differ slightly from the provisions which govern how standard determinate sentences and short and long-term sentences are set in England and Wales, and Scotland, respectively. These issues were not addressed in the emergency timetable as there were no prisoners with impending release, but Ministers committed to returning to this issue for NI. Therefore, provision to rectify that inconsistency is being provided in this Act.
- Although the number of children convicted of terrorism offences is small, it is clear that some are susceptible to radicalisation and to adopting extremist views and that some pose a threat whilst still under the age of 18. The Government also intends to ensure through this Act that this threat is reduced by extending measures to youth offenders where appropriate.
Extent
- Counter-terrorism is a reserved matter, but significant devolution has been in place since 1999 for Scotland and 2010 for Northern Ireland in relation to criminal justice. The UK Government wants the policy intent of the CTS Act to apply UK-wide, both as a reflection of the reserved nature of counter-terrorism and to ensure equal provision across jurisdictions to address the terrorist threat to the UK public.
- Due to the devolved nature of much of criminal justice to Northern Ireland and Scotland, this Act has required specific measures for each jurisdiction. Exact details on each provision can be found at Annex A.
Sentencing and release
- Following the passing of the TORER Act, all determinate terrorist or terrorism-related offenders must now be referred to the Parole Board at the two-thirds points of the sentence before they can be considered for early release. Prior to this, those serving a standard determinate sentence, or those under 18 serving a section 91 sentence under the Powers of Criminal Courts (Sentencing) Act 2000, were automatically released at the halfway point with no referral to the Parole Board. Once released these offenders would serve the remainder of their sentence in the community on licence. Prior to the TORER Act, those who received a SOPC (currently only applicable to adults) could be considered by the Parole Board for release from the halfway point. Once released, offenders subject to a SOPC serve the remainder of their sentence on licence including a mandatory 12-month licence period. Following the passing of the TORER Act 2020 release by the Parole Board could only be considered from the two-thirds point of the sentence. This Act will extend the scope of the SOPC, and create an equivalent sentence for Scotland and Northern Ireland and for youths, to ensure the new release provisions and a minimum period on licence apply consistently for adult and youth terrorist offenders across the UK.
- The TORER Act also brought in line the consideration for release by the Parole Board at two-thirds for all extended sentences. In England and Wales, those assessed as dangerous may receive an extended determinate sentence (EDS), which comprises a custodial term and an extension period to be served on licence in the community. They may be considered for release by the Parole Board once they have served two-thirds of the custodial element of their sentence. This Act will remove discretionary early release for the most serious terrorist offenders who receive an EDS or the Scottish and Northern Ireland equivalent, where the offence attracts a maximum penalty of life.
- The maximum penalties for a number of terrorism offences were established in the Terrorism Acts of 2000 and 2006, with some amended in the Counter-Terrorism and Border Security Act (CTBSA) 2019. The terrorist threat has continued to evolve, as evidenced by the attacks at Fishmongers’ Hall and Streatham, and there remain some offences where the maximum penalty is not aligned to the seriousness of the offence. This legislation will address this discrepancy. It will continue to be for judges to decide what sentence is appropriate in the particular circumstances of individual cases, within the available range and in line with applicable sentencing guidelines.
Polygraph testing
- Polygraph examinations have been used in the management of sexual offenders on licence since January 2013 by the National Probation Service (NPS) in England and Wales. Initially, this was as a successful pilot and it was subsequently rolled out as a national programme. Examinations are carried out by qualified Probation Officers who have been trained as accredited examiners and who are also experienced in managing high risk offenders. Polygraph examinations are used to monitor compliance with other licence conditions; the information obtained during testing is used by Probation offender managers to refine and improve risk management plans. This Act will enable it to be extended for use with terrorist offenders on licence in England and Wales, and with TPIM subjects in a consistent manner in all jurisdictions of the UK. Equivalent provision for polygraph testing as part of a licence condition is not required in Scotland and Northern Ireland as existing licence condition setting powers could be used to specify polygraph testing in a licence condition in those jurisdictions.
Monitoring and prevention
- The TPIM Act 2011 replaced the previous system of control orders. It provides for a number of measures to be imposed on individuals who the Home Secretary believes have, on "the balance of probabilities" (as amended by the Counter-Terrorism and Security Act 2015), been involved in terrorism related activity. The Counter-Terrorism and Security Act 2015 made some amendments to the TPIM Act 2011. These amendments followed recommendations that the former Independent Reviewer of Terrorism Legislation (IRTL), David Anderson QC, made in his annual report. These amendments addressed the changing threat picture in 2015. More recently, in response to the Streatham attack, Lord Carlile QC, another former IRTL, called for tougher restrictions on released prisoners, such as the reintroduction of control orders. The Government does not consider it necessary to reintroduce control orders; sufficient amendments can be made to the TPIM Act 2011 to strengthen it. These amendments include: lowering the standard of proof for imposing a TPIM to "reasonable belief"; extending the maximum duration of a TPIM notice from two years to five; and allowing for a flexible curfew rather than the current overnight measure.
- In his 2019 report, Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation found that "The power of the High Court to make SCPOs is a seriously underused power generally, and has not been used in connection with suspected terrorists to date". The changes in this legislation are intended to help support the use of SCPOs in terrorism cases by simplifying the process for police to make an application for an SCPO.
- The 2008 Act provides a notification regime for individuals sentenced to 12 months’ or more imprisonment for a specified terrorism offence or (in England, Wales and Scotland) an offence with a terrorism connection. This notification regime was strengthened by the 2019 Act to require Registered Terrorist Offenders to provide additional information to the police. This legislation will add further offences to those leading to notification requirements for individuals convicted of terrorism or terrorism-related offences on their release from prison.
